Central Administrative Tribunal - Chandigarh
Unknown vs Post Graduate Institute Of Medical ... on 22 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO. 702 -CH of 2010
Chandigarh, this the 22nd day of August, 2012
CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
HONBLE MR. RANBIR SINGH, MEMBER(A)
Sanjeev Kalia, aged 49 years, son of Sh. D.N. Kalia, Junior Engineer ) Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh.
APPLICANT
BY ADVOCATE: SHRI R.K. SHARMA
VERSUS
1. Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh through its Director.
2. Sh. Prem Chandra, Assistant Engineer (Civil), Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh.
3. Sh. Narinder Malik, Assistant Engineer (Civil), Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh.
4. Sh. Rajan Aggarwal, Assistant Engineer (Civil), Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh.
RESPONDENTS
BY ADVOCATE: SHRI NAMIT KUMAR
ORDER
HONBLE MR. RANBIR SINGH, MEMBER(A):-
As per the Original Application, the applicant had joined the respondents organization as a Junior Engineer (Civil) on 02.06.1983 and after completion of 5 years and 15, he was granted the higher scale of Pay of Rs. 1640-2900/- and grade of Assistant Engineer w.e.f. 2.6.1988 and 2.6.1998 respectively. Thereafter, on the basis of recommendations of the DPC the applicant was granted the scale of XENs (Hospital Engineer) in the pay scale of Rs. 10,000-15,200/- w.e.f. 2.6.2007 under the ACP scheme on the completion of 24 years of service vide order dated 12.8.2008 . Although he has been given the pay scale of XENs (Hospital Engineer), yet he has to perform the duties of Junior Engineer (Civil) and he has not got any functional promotion during his service career.
2. It has been further pointed out in the O.A. that on the recommendations of the Cadre Review Committee the strength of Assistant Engineer (Civil) in the respondents organization was raised from four to six. Prior to 3.10.2000, when there were only four posts, 50% of the posts were filled through direct recruitment and 50% by promotion. W.e.f. 3.10.20000 all the six posts were to be filled up by promotion . With a view to give undue benefit to some incumbents promotion orders were issued on adhoc basis on 25th January, 2000 subsequently regularizing them vide order dated 24.6.2003, including those junior to the applicant. The applicant was ignored for promotion as Assistant Engineer (Civil) w.e.f. 2000, 2002 and 2004 because respondent no.1 considered promotions as Assistant Engineer (Civil) w.e.f. 2003 and 2005. His ACRs for the period 1995-96, 1996-97 and 1997-98 were Very Good and for the period 1998-99 was Good. However, for the year 1999-2000, 2000-2001 and 2002-2003 the ACRs were Average. He had filed Civil Writ Petition No. 15241 of 2005 in the High Court of Punjab & Haryana seeking quashing of order of promotion of respondents 2 to 5 ordered on 25th January, 2003 and sought direction for promotion as Assistant Engineer on regular basis. That Writ Petition came to be dismissed on 5th August, 2008.
3. It has been further pointed out in the O.A. that a review DPC was held on 6.6.2010 for placement/promotion of Assistant Engineer (Civil) in respect of two clear vacancies one w.e.f. 4.4.2002 and the other w.e.f. 1.8.2004 and instead of considering the applicant w.e.f. 3.10.2000 he was considered in respect of the subsequent vacancies arising on 4.4.2002 and 1.8.2004. Respondent no.2 who was junior to the applicant, was considered for promotion by wrongly showing it to be a reserved point which is illegal and arbitrary. The earlier DPC of 2003 was wrongly convened.
4. The applicant has sought the following relief:-
(i) Order dated 01.07.2010 endorsed vide Endst No. PGI/Engg/SHE/2010/4100-4115 dated 13.07.2010 (Annexure A-1) whereby claim of the applicant for promotion to the post of Assistant Engineer (Civil) has not been considered w.e.f. 3.10.2K be quashed to that effect.
(ii) Directions be issued to the respondent NO.1 to consider the case of the applicant for promotion from the post of Junior Engineer (Civil) to Assistant Engineer (Civil) w.e.f. 3.10.2000 with all the consequential benefits including seniority etc.
5. The grounds with legal provisions taken by the applicant in the O.A. for the relief sought are as follows:-
That the action of the respondents including Annexure A-1 i.e. order dated 1.7.2010 endorsed vide Endst. No. PGI/Engg/SHE/2010/4100-4115 dated 13.7.2010 whereby claim of the applicant for promotion to the post of Assistant Engineer (Civil) has not been considered w.e.f. 3.10.000, is null, voil, illegal, arbitrary and is liable to be quashed.
i) That proper post based roster w.e.f. 2.7.1997 has not been prepared by the respondents as per which turn of SC candidates does not come and the claim of the applicant has been ignored illegally. Additionally only the incumbents existing on 2.7.1997 in the cadre, could be considered and not those who stood promoted, died, or retired.
ii) That after amendment of Recruitment Rules/ sources of Recruitment Rules, fresh roster w.e.f. 3.10.2000 in terms of Govt. of India DOPT letter dated 24.6.1978 was required to be maintained and the consideration of the candidates qua the vacancies, which became available on 3.10.2000 were to be considered from that point of time and not the old vacancies filled in under the unamended rules i.e. consideration of the candidate qua 4 vacancies i.e. 2 by merger of sources and 2 additional vacancies created as a result of cadre review and against these vacancies, the turn of reserved category candidate does not come.
iii) That the action of the respondents is harsh, arbitrary, and unsustainable in the eye of law and the principles of natural justice and thus liable to be quashed.
6. Respondent No.1 has filed a reply statement, Respondent no. 3 has filed a separate reply statement.
7. Respondent no.1 in his reply statement has pointed out that the cadre review of the Engineering Department was approved by the Governing Body of Respondent no.1 on 25.11.1995 and finally implemented w.e.f. 3.10.2000 by notifying vide order dated 11.2.2006 (Annexure A-1). Prior to cadre review, the sanction strength of Assistant Engineer (Civil) was four which was to be filled up 50% by direct recruitment and 50% by promotion. Subsequent to cadre review, the strength of Assistant Engineer (Civil) was increased to six and 100% posts were to be filled up by promotion. Consequent to the issuance of instructions by the DOPT vide O.M. No. 36012/02/96/Estt.(Res.) dated 2.7.1997 providing for post based rosters instead of vacancies based roster, the rosters were recast. The first post (UR) was filled up by Sh. Arun Vohra who was appointed on 24.5.1980 and promoted a Assistant Engineer on 26.9.1997. Second post (UR) was filled up by the appointment of Sh. R.K. Goel on 24.5.1980 who after having been promoted as Hospital Engineer had retired on 31.7.2004. The third post (UR) was filled up by the appointment of Sh. Rajnish Puri who was appointed on 31.1.1992 and promoted on adhoc basis on 26.9.1997 and thereafter on 4.4.2002 as a Hospital Engineer. The fourth post (UR) was filled up by the appointment of Sh. R.C. Sharma on 1.7.1998. The fifth post (UR) was filled up by the appointment of Sh. Parveen Kumar on 1.7.1998. The Sixth post (UR) was filled up by initially appointing Sh. Kishori Lal w.e.f. 24.6.2003. The third roster point (UR) was filled up by appointing Sh. Rajan Aggarwal on 1.8.2004. Respondent no.1 has further pointed out that that the representation at roster point no.6 and at point no. 1,2 & 3 were made by giving retrospective promotion under cadre review which is also a part of the review of the earlier promotion granted during January 2003 and June 2003.
8. Respondent no.1 has also pointed out that a DPC was held on 25.1.2003 when the case of the applicant was considered for adhoc promotion and he was found unfit due to his not meeting the requirement Bench Mark for promotion. Respondent no.1 has reiterated that the clear vacancy position as on 3.10.2000 was one (UR) candidate and one for SC candidate and the rest of the vacancies became available on 4.4.2002 and 1.8.2004 consequent, to the promotion of Sh. Rajnish Puri as (Hospital Engineer)n w.e.f. 4.4.2002 and retirement of Sh. R.K. Goel on 31.7.2004. The applicant was considered against the subsequent two vacancies also, but was found unfit due to his not meeting the Bench Mark.
9. Respondent no.1 has also pointed out that the applicant was placed under suspension vide order dated 26.12.2000 and subsequently reinstated vide order dated 5.4.2001 before issue of charge sheet dated 17.4.201 on account of the charges of negligence in performing the duties for not maintaining standard of work in the construction of Type V Houses in Sector 24 and executing substandard work of reconstruction of boundary wall of Type VI and Type VII houses in Sector 24. He was awarded the penalty of reduction to a lower stage in the time scale of pay for a period of two years vide order dated 16.12.2003. It was also directed in the penalty order that the applicant shall not earn any increments of pay during the period of such reduction and on the expiry of such period of two years the reduction will have the effect of postponing the future increments of his pay. He was communicated adverse remarks in the Annual Confidential Report for the year 1999-2000 vide letter dated 18.11.2000. His representation submitted on 09.12.2000 was considered and rejected vide letter dated 14.2.2002. Subsequently, he was considered for second financial upgradation under the ACP on completion of 24 years of service and was found fit for the same w.e.f. 2.6.2007.
10. Respondent no.3 in his reply statement has stated that promotion/upgradation w.e.f. 2.6.2007 on the basis of service record has nothing to do with the upgradation under the cadre review w.e.f. 3.10.2000 or promotion with retrospective effect i.e. w.e.f. 4.4.2002 or 24.6.2003. The present controversy is limited to the upgradation under the second cadre review and the retrospective promotion made vide order dated 13.7.2010. The applicant did not fulfil the required ACR Bench Mark for the vacancy as on 4.4.2002 and on 1.8.2004. The DPC was convened on 8.6.2010 to make upgradation under the second cadre review w.e.f. 3.10.2000 for making adjustments of future posts/vacancies. Respondent no.1 has wrongly promoted respondent no.2 by applying reservation in upgradation of posts under the restructuring of cadre review in clear violation of the law laid down by the Apex Court. Respondent no.1 was supposed to draw a fresh roster by taking into account the existing incumbents of the post of Assistant Engineer. The direct recruitment/promotions made prior to 3.10.2000 have been wrongly taken into consideration to falsely arrive at Roster point no.7 in order to give undue favour to respondent no.2. The respondent no.3 has further stated in his reply statement that he had challenged these illegally, unconstitutionally and arbitrary actions of respondent no.1 by filing O.A. NO. 153 of 2011.
11. The applicant has filed a rejoinder to the reply statement of respondent no.1 and referred to the case of All India Employees Association (Railways) vs V.K. Agarwal -2001 (10) SCC 165, in which the Honble Supreme Court had held that when it is a case of upgradation and no additional post is created, then the principle of reservation will not be applicable. The applicant contends that the stand taken by the respondent no.1 in favour of application of reservation in cadre review is illegal and not sustainable. While implementing the second cadre review to the other categories of the Engineering Department no reservation has been applied, whereas in the case of Jr. Engineer (Civil) to Asstt. Engineer (Civil) it has been done. Such arbitrary action on the part of respondent no.1 not legally sustainable. In the DPC which was held on 21.8.2006, and 4.9.2008 for promotion to the post of Asstt. Engineer (Civil) no reservation was applied. Therefore, the stand taken by respondent no.1 is not fair and against their own record. The applicant has reiterated that after amendment of the recruitment rules fresh roster was to be started w.e.f. 3.10.2000 in terms of DOPT letter dated 24.6.1978 and that as of 2.7.1997 only those persons were to be shown in the roster who existed in the cadre, and not those who stood retired, promoted , died etc. Till the roster was completed as per the allotted source, it was to run vertically and no replacement should take place and if the process was followed correctly the turn of the SC category candidate who was junior to the applicant does not come up. As far as fitness of the applicant is concerned, the record of the applicant has to be considered up to 3.10.2009 in which he falls within the zone of vacancies and attained the Bench Mark.
12. Respondent no.1 has filed additional reply to the rejoinder filed by the applicant pointing out that in 1997 the entire instructions for reservations were changed . Vide DOPT O.M. NO. 36012/2/96-Est. (Res.) dated 2.7.1997 shift was made from vacancy based roster to post based roster which provides that the reservation for the entitled categories shall be kept within the prescribed percentage of reservation and the total reservation i.e. number of points earmarked for reserved category in a roster was not to exceed 50% of the cadre. Cadre means the number of sanctioned posts which were to be filled by particular mode of recruitment. There could be a situation in which the strength of cadre may increase or decrease. In that situation the roster had to be expanded if the number of posts in the cadre had increased and the roster had to be contracted if the number of posts had decreased. Respondent no.1 has further clarified that the difference between vacancy-based and post-based reservation is that in the vacancy based system which was applicable prior to 2.7.1997, the percentage of reservation was applied on the number of vacancies and not on posts whereas in the post based reservation, reservation was applied to the total number of posts in the cadre. Respondent no.1 has elaborated the system of reservation in the additional reply statement and also furnished supporting documents in this regard.
13. The applicant has also filed a rejoinder to the reply statement of respondent no.3 in which apart from reiterating the contentions already made, reliance has been placed on the Judgment dated 6.9.2011 of the Apex Court passed in Civil Appeal Numbers 5286-87 of 2005 Bharat Sanchar Nigam Ltd. Vs. R. Santhakumari Velusamy & Ors.
14. We have heard the learned counsel for the parties and perused the pleadings.
15. It is undisputed that vide order dated 11.2.2006 the cadre review of Group (B), (C) & (D) staff of the Engineering Department of respondents organization was implemented w.e.f. 3.10.2000. It is for consideration whether a fresh rooster was required to be made w.e.f. 3.10.2000. The learned counsel for the applicant has relied upon 1995 SC case (L & S) 938 Union of India Vs. V.K. Sirothia in which it was held that upgradation on account of restructuring of cadre does not attract reservation. He has relied upon Civil Appeal NO. 5286-87 of 2005 BSNL Vs. R. Santhakumari Velusamy & Ors. decided on 6.9.2011 in which it was held that where restructuring of post doe not involve creation of additional posts but merely results in some of the existing posts being placed in the higher grade to provide relief against stagnation the said process does not provide reservation. Reliance has also been placed on order dated 21st August, 2008 in O.A. NO. 287/2007 R.K. Chauhan Vs. UOI & Ors. of this Tribunal in which it was held that the roster for the prescribed percentage will need to be started after the new Rules came to be effected. That finding was based on Clause 3 of DOPT OM dated 24.6.1978. Reference has also been made to the order dated 13.3.2012 of this Tribunal in O.A. NO. 308-CH-2010 & 3 other O.As in which it was found that no exercise was carried out the representation of SC/ST in the service in the Union Territory of Chandigarh. Reference was also made to CWP NO. 13218 of 2009 (O & M) decided on 15.7.2011 in which it was held that no survey had been undertaken to find out inadequacy of service in respect of the member of SC/ST in the service in the Union Territory of Chandigarh. Therefore, no reservation in promotion could be made in pursuance of OM dated 2.7.1997.
16. The basic contention of the applicant relates to the application of the roster for reservation. While on the one hand it has been contended by the learned counsel for the applicant that reservation for post based roster has not been prepared correctly w.e.f. 2.7.1997, on the other hand the applicant contends that fresh roster should have been prepared w.e.f. 3.10.2000 in terms of DOPT letter dated 24.6.1978 ( Annexure A-11).
17. Respondent no. 1 has pointed out that roster has been prepared as per DOPT OM dated 2.7.1997. Supporting documents have been furnished in support of this contention. O.M. dated 2.7.1997 of the DOPT provides para 9 of Annexure-I thereof contained the explanatory note as follows:-
Whenever there is any increase or decrease in correspondingly expanded or contracted. The same will also apply whenever there is a change in recruitment rules which affects the proportion of posts to be filled by a particular mode of recruitment.
18. We have also examined the DOPT OM dated 24.6.1978 relating to: Staring point in the recruitment roster for the purpose of seniority -procedure regarding.
19. This OM relates to starting point in the recruitment roster when recruitment is made by more than one method namely direct recruitment/promotion/transfer on deputation etc. It provides for the situation in which a new roster is to be started. It relates to a situation when there is an amendment in the recruitment rules which changes the percentage allotted for various modes of recruitment. However, in the instant case, there is only one mode of recruitment to the post of Assistant Engineer (Civil) namely by promotion. Moreover, we agree with Respondent NO. 1 that DOPTs OM dated 24.6.1978 has been superseded by DOPTs OM dated 2.7.1997.
20. In 2009 (1) SCT 267 Union of India Vs. Pushpa Rani and Other the Apex Court had dealt with the question whether the policy of reservation for posts for SC/ST can be applied at the stage of giving effect to cadre restructuring exercise undertaken by the Railway Board. It was held as follows:-
25. Once it is recognized that the additional post becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst the employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude the applicability of the policy of reservation while effecting promotions, more so because it has not been shown that the procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion. It has been further held therein that:-
The policy envisaged that additional post becoming available in the higher grades as a sequel to restructuring of some of the cadres should be filled by promotion by considering such of the employees who satisfy the conditions of eligibility including the minimum period of service and who are adjudged suitable by the process of selection. This cannot be equated with upgradation of posts which are required to be filled by placing the existing incumbent in the higher grade without subjecting them to the rigor of selection. The Apex Court has gone on to state as follows:-
28. In view of the above discussion, we hold that the Railway Board did not commit any illegality by directing that the existing instructions with regard to the policy of reservation of post for Scheduled Castes and Scheduled Tribes will apply at the stage of effecting promotion against the additional posts.
21. In Civil Appeal NOs. 5286-87 of 2005- Bharat Sanchal Nigam Limited Vs. R. Santhakumari Velusamy & Ors. it was held ( in para 21 ) as follows:-
(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(vi) Where there is restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the condition of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation. The instant case involves increase in the no of posts, selection and promotion.
22. Before, proceeding further we may take note of the remaining case law cited by the learned counsel for the applicant. The O.A. No. 308/ch/2010 & three other O.As ( Rajesh Shukla & Ors. Vs. UOI & Ors.) decided on 13.3. 20011 by a common order by a Bench of this Tribunal dealt with matter of reservation vis-`-vis survey by the Chandigarh Administration when without retrospective effect and is not relevant to this case. The same applies to CWP No. 13218/2009 ( O&M) Lachhmi Narain Gupta & Ors. Jarnail Singh & Ors. decided by the Punjab & Haryana High Court on 15.7.2011, which deals with survey of SC/ST in the service. 1999 SCC ( L & S) 938 related to a case where posts were redistributed which did not amount to promotion. O.A. No. 287/HP/2007 ( R.K. Chauhan Vs. UOI & Ors.) decided on 29th August, 2008 pertains to a case where there was the ratio of department promotes vis-`-vis the direct recruit. CWP No. 6724/2012 Union of India Vs. C.K. More decided on 29th August, 2008 pertains to a case where there was the ratio of departmental promotes vis-`-vis the direct recruits. Thus we find that the aforesaid case law does not help the case of the applicant.
23. Respondent No. 1 has in his reply has pointed out that they have taken care of these provisions by expanding the roster to deal with the increase in the cadre strength of Assistant Engineer (Civil).
24. The basic point for consideration is the claim of the applicant to be considered for promotion to the post of Assistant Engineer (Civil) w.e.f. 3.10.2000 when the cadre review was implemented. We are satisfied with the reply statement of respondent no.1 that the applicant was duly taken into the zone of consideration . There was only one (UR) vacancy on 3.10.2000 and Sh. Kishori Lal who was senior to the applicant met the required Bench Mark and he was selected. Sh. Prem Chandra was promoted w.e.f. 3.10.2000 against the SC post who was found within the zone of consideration and was found fit by the DPC for that SC point. The applicant was considered subsequently for the posts falling vacant on 4.4.2002 and 1.8.2004, but was found unfit due to not meeting the ACR bench mark.
25. In view of the aforesaid discussion, we find no merit in the O.A. It is dismissed accordingly. No costs.
(RANBIR SINGH)
MEMBER(A)
(JUSTICE S.D.ANAND)
MEMBER(J)
Dated: August 22nd , 2012
`SK
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(OA No.702-CH-2010 )